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ELCDismissedELC Appeal (Memorandum of Appeal dated 14th April, 2021) - parties' names not stated in judgment text· [2022] KEELC 320 (KLR)

Simon Tianta Olotapori v Shadrack Samoei & Josphat Kipkorir (Suing On Behalf Of The Estate Of The Late Eunice Samoei) & another [2022] KEELC 320 (KLR)

Environment and Land Court
27 April 2022
2,274 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's encroachment appeal because official survey evidence showed his land had not been trespassed on.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court against the judgment of Hon. G.N. Wakahiu (Chief Magistrate) delivered on 30th March 2021 in Narok CMCC ELC No. 28 of 2018, in which the appellant's claim of trespass and illegal excision of 27 acres from his parcel CISMARA/LEMEK/1758 was dismissed. The appellant sought to have the trial judgment set aside and judgment entered as prayed in the plaint, or alternatively a retrial, with costs. The appellant's written submissions were disregarded because they addressed grounds belonging to a different matter. The respondents maintained that parcel 3789 was validly carved out of parcel 1749, that the brace existed from the first demarcation, and that the appellant had not discharged the burden of proof. Guided by Selle v Associated Motor Boat Co., the court re-evaluated the evidence. It placed decisive weight on the undisputed Registrar's report and surveyor's report of 26th August 2020, which established that the ground area of parcel 1749 exceeded its registered area by 33.19 hectares, while the appellant's parcel 1758 was 3.1 hectares less on the ground than registered. On that basis the court found no encroachment, held the trial magistrate's decision could not be faulted, and dismissed the memorandum of appeal dated 14th April 2021 with costs to the respondents.

Key legal issues

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01

Whether the respondents encroached upon or illegally excised 27 acres from the appellant's parcel CISMARA/LEMEK/1758

Holding

No encroachment or illegal excision was proved; the Registrar's and Surveyor's reports showed the appellant's ground area was less than the registered area, while parcel 1749's ground area was less than registered

Reasoning

Neither party disputed the Registrar's report dated 26th August 2020 or the accompanying surveyor's report. The Registrar established ground and registered acreages for parcels 1749 and 1758. Parcel 1749's ground area exceeded its registered area by 33.19 hectares, while the appellant's parcel was 3.1 hectares less on the ground than registered. The court found this inconsistent with the appellant's claim of excision and held the trial magistrate's finding of no trespass could not be disturbed.

p. 3
02

Standard of proof on the appellant's claim of trespass and invalid title

Holding

The appellant failed to discharge the burden of proving trespass or that the respondents' title to CISMARA/LEMEK/3789 was procured illegally, unprocedurally or fraudulently

Reasoning

The respondents submitted, relying on section 26(1) of the Land Registration Act and Palace Investments, that whoever alleges must prove, and that their title was validly derived from parcel 1749 as bona fide purchasers for value. The surveyor involved in the initial demarcation testified the brace existed from the first demarcation, and no evidence of fraud or illegality in the subdivision was adduced.

p. 2
03

Reliability of the appellant's documentary evidence (sheet maps)

Holding

The appellant's sheet no. 2 and exhibit 5 did not qualify as authentic maps

Reasoning

The defence surveyor, Henry Oluoch Nyaema, who participated in the subdivision of Lemek Group Ranch, testified that the appellant's sheet 2 could not be a map because title numbers in series 1400 upwards appeared on it while sheet 10 carried series 1700, 1800 and partly 600, and exhibit 5 lacked a brace and was not authentic. This undermined the appellant's documentary case.

p. 3

Legal principles established

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  • A first appellate court must re-evaluate the evidence and draw its own conclusions while making due allowance for not having seen or heard the witnesses
  • Where an undisputed Registrar's report establishes that the ground area of a parcel is less than the registered area, a claim of encroachment by a neighbouring parcel whose ground area is less than registered fails

Court orders

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  1. 1.The Memorandum of Appeal dated 14th April, 2021 is dismissed with costs to the respondents

Authorities

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Legislation

  • Land Registration ActSection 26(1)

Cases cited (4)

  • Azzuri Limited versus Pink Properties Limited
    [2017] eKLR
  • Palace Investments Limited versus Geoffrey Kariuki Mwenda & Another
    [2015] eKLR
  • Ibrahim versus Hassan & Charles Kimenyi Macharia, Interested Party
    [2019] eKLR
  • Selle & Another Vs Associated Motor Boat Co. Ltd & Others
    (1968) EA 123
On appeal from
Chief Magistrate's Court, Narok (Narok CMCC ELC No. 28 of 2018)
Narok CMCC ELC No. 28 of 2018
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (Environment and Land Court appeals from subordinate courts)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Simon Tianta Olotapori v Shadrack Samoei & Josphat Kipkorir (Suing On Behalf Of The Estate Of The Late Eunice Samoei) & another [2022] KEELC 320 (KLR)", Case Analysis (2022). ELC Appeal (Memorandum of Appeal dated 14th April, 2021) - parties' names not stated in judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/320/eng@2022-04-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.